By Jay Kaplan
On Jan. 9, 2006 the United States Senate will begin confirmation hearings for President Bush’s most recent nomination to the United States Supreme Court: Judge Samuel Alito. If confirmed, 55-year-old Alito could serve on the Supreme Court for at least 30 years. The potential impact on the development of civil rights for the LGBT community demands that the Senate take a close look at a Supreme Court nominee’s record on specific legal issues, and not swiftly confirm a lifetime appointment. The Senate is not and should not be obligated to rubber stamp the judicial nominations of the president.
What makes this particular appointment even more important is the loss of Justice Sandra Day O’Connor, who as the centrist member of the Supreme Court was able to reach consensus with other justices resulting in majority decisions that protected and advanced the civil rights of marginalized groups, like LGBT people.
On Jan. 9, the ACLU, for only the second time in its 86 year history, issued a formal public statement in opposition to the appointment of Judge Alito after thoroughly reviewing his federal appeals court record on race, religion, and reproductive rights cases. These are precisely the issues in which Justice O’Connor often cast a critical swing vote on a closely divided Supreme Court.
Several prominent LGBT organizations, including the Human Rights Campaign, the National Gay and Lesbian Task Force, P-FLAG and Lambda Legal are opposing Alito’s nomination for fear that he may scale back or reverse the legal gains that gays and lesbians have made towards equality.
On the other end of the continuum, Alito’s support from anti-gay organizations, such as Concerned Women of America, Pat Robertson’s Center for Law and Justice and Phyllis Schafly’s Eagle Forum should give our community pause.
The following is an overview of Alito’s record of interest to the LGBT community.
College Days: As a college senior at Princeton in 1971, Alito supervised a group of 19 students who wrote on “the boundaries of privacy in American society.” The group recommended that criminal sodomy laws be struck and that sexual orientation discrimination in hiring be “forbidden.” In the introduction Alito warned of a “great threat to privacy in America.”
HIV/AIDS: Alito, as Deputy Assistant Attorney General, helped author a 1985 opinion that said that an employer could legally fire a person with AIDS “based on fear of contagion, whether reasonable or not.” In other words, an HIV+ employee could be fired if his co-workers thought they could contract the virus by being the same room with him. This opinion was subsequently rejected by the U.S. Supreme Court in 1987 (School Board of Nassau County v Arline), which ruled that fear of contagion had to be based on actual medical and scientific information.
School Anti-Harassment Policy: In 2001, Alito struck down a school district’s anti-harassment policy, which included gender and sexual orientation, as violating the free speech rights of other students. The overbroad policy defined harassment as “creating an intimidating, hostile or offensive environment.” The ACLU believes that anti-harassment policies can be tailored narrowly so as not to curtail or prohibit protected free speech.
Anti-gay Harassment in School: In 2004, Alito ruled in favor of a New Jersey student who sought transfer to a middle school outside of his neighborhood in order to escape severe anti-gay harassment. Although the student was not identified as gay, Alito noted that the harassment focused on his “perceived effeminacy” and that he was called “faggot” and “queer.”
Reproductive Rights: In the 1980’s while working as a government lawyer, Alito developed and disseminated a legal strategy focused on overturning Roe v Wade, the decision which protects the privacy right of a woman to decide to have an abortion during the first or second trimesters of her pregnancy. Recently Pennsylvania attempted to restrict this right by requiring a woman to notify her spouse prior to obtaining an abortion. Though the restriction was found to be unconstitutional, Judge Alito wrote the dissenting opinion in favor of this restriction. The privacy right at the heart of Roe is cited in the Supreme Court decisions striking down restrictions on the right of married couples to use birth control and Texas’ sodomy law, which crimininalized consensual same-sex sodomy between adults.
Church-State separation: Government neutrality has served to protect religious freedom in the United States. Alito’s record in these matters is less than stellar and his opinions appear to defer to religious viewpoints. In one case Alito supported the dismissal of a taxpayer challenge to a township’s religious holiday display because the display was donated and any public employee time to support the display was minimal. Alito also sided against a public school that refused to permit an evangelical Christian group to have teachers distribute the group’s fliers in the classroom.
Why is separation of church and state important to the LGBT community? The Bush Administration has promoted faith based programming using governmental funding. These programs may discriminate on the basis of religious or moral beliefs, in violation of civil rights laws. For example, The Salvation Army may receive federal dollars while refusing to employ or serve gays and lesbians.
Relationship Rights: Judge Alito upheld an opinion denying political asylum to a 19-year-old Chinese couple. The couple was seeking asylum because under Chinese law they were not allowed to marry before 25. Chinese law also forced the young woman to undergo an abortion during her eighth month of pregnancy. The U.S. had granted asylum to married men in China whose wives were forced to have an abortion. Alito argued that in limiting asylum to married spouses the United States has a legitimate interest in “protecting traditional values,” even in extraordinary circumstances. Alito’s refusal to protect unmarried couples could prove very problematic for LGBT relationships.
Knowing all this, we as individual members of the LGBT community, must look at Judge Alito’s record for ourselves, beyond organizational endorsements and opposition.
There is much at stake for all of us.